Thursday, 5 January 2017

A template for protecting human rights during the ‘refugee crisis’? Immigration detention and the expulsion of migrants in a recent ECtHR Grand Chamber ruling

Stefano Zirulia, Lecturer, University
of Milano* (main text on ECHR) and Professor Steve Peers (Annex on EU law aspects)

* Stefano Zirulia participated in the proceedings
before the ECHR as counsel for the applicants

Introduction

On the 15th of
December 2016 the European Court of Human Rights Grand Chamber handed down its judgment
in the case of Khlaifia and Others v.
Italy, which partially reversed the Chamber ruling
issued on the 1st of September 2015. The case is about immigration detention at
the Italian borders (including the island of Lampedusa) and the expulsion of
aliens from Italy to Tunisia. Whilst the events took place in 2011, during that
peculiar time which was in the immediate aftermath of the Arab Spring, the
issues raised before the Court by the applicants and the principle outlined by
the judgments appears relevant to the current refugee crisis and its management
by the European Union Institutions and Member States.

1. The Facts

The applicants are
three Tunisian nationals who, just like thousands of migrants every year, attempted
to enter Europe by crossing the Mediterranean Sea from northern Africa to the Italian
coast on board rudimentary vessels. The events took place in September 2011,
when the flux of migrations was particularly high due to the revolutionary riots
(so-called Arab Spring), which had just taken place in some North African
countries. While heading to Lampedusa, the applicants were intercepted by the
Italian coastguard and brought to the “Early Reception and Aid Centre” (“Centro
di Soccorso e Prima Accoglienza” or “CSPA”) located on the island. They were
kept at the centre for several days: the first applicant from the 17th to the 20th
of September; and the second and the third applicants from the 18th to the 20th
of September. When a fire partially damaged the centre, the migrants were first
taken to a sports facility and then they escaped and proceeded to move around the
island. On the 22nd of September, after having been stopped by the police, the
applicants were transferred by airplane to Palermo (Sicily), where they were
confined on board ships moored in the harbour for a few days, together with
hundreds of other migrants. On the 27th of September, dozens of these migrants,
including the second and third applicants, were taken by bus from the ships to the
Palermo airport, where they briefly met the Tunisian Consul and immediately
afterwards were returned to Tunisia. On the 29th of September, the first
applicant followed the same procedure and was returned to Tunisia as well.

2. The Application to the ECHR and the Chamber Judgment

The applicants have
alleged that Italian Government violated several of their rights as provided by
the ECHR. Firstly, their right to liberty (Article 5 ECHR) was violated because
the Lampedusa reception centre and the ships had been used as detention centres
without any legal basis (Article 5 § 1), without providing any information to the
detainees (Article 5 § 2), nor granting them access to judicial review (Article
5 § 4). Secondly, their right not to be subjected to inhuman and degrading
treatment (Article 3) was violated on account of the overcrowding and the poor health
and hygiene conditions in which they were held both in the reception centre and
on board the ships. Thirdly, their right not to be subjected to collective
expulsion (Article 4 of Protocol No. 4 to the Convention) was violated because
their forced returns had been decided according to a bilateral agreement signed
between Italy and Tunisia in April 2011, i.e. on the sole basis of their
nationality, without any consideration of their individual situations. Finally,
their right to an effective remedy (Article 13), taken together with Article 3
and Article of 4 Protocol No. 4 was violated because they could neither effectively
challenge before a national court the conditions of their detention nor the
return procedure.

The Chamber judgment
was handed down on the 1st of September 2015. The Court unanimously found violations
of Article 5 with regard to § 1, § 2 and § 4. As to Article 3, the Court majority
(five votes to two) found a violation in relation to the conditions in which
the applicants were held at the Lampedusa reception centre, but not in relation
to those conditions in which the applicants were held on board the ships moored
in Palermo. The same majority also pointed out a series of factors indicating
that the expulsion was collective in nature and, thus, in breach of Article 4 of
Protocol No. 4 (see § 156: «the refusal-of-entry orders did not contain any
reference to the personal situations of the applicants; the Government failed
to produce any document capable of proving that individual interviews
concerning the specific situation of each applicant had taken place prior to
the issuance of the orders; a large number of individuals of the same origin, around
the time of the facts at issue, were subjected to the same outcome as the
applicants; and the bilateral agreements with Tunisia, which have not been made
public, provided for the return of unlawful migrants through simplified
procedures, on the basis of the mere identification of the person concerned by
the Tunisian consular authorities»). Finally, again the majority held that
there had also been a violation of Article 13 taken together with Article 3, due
to the lack of any effective remedy to challenge the conditions of confinement;
and another breach of Article 13 taken together with Article 4 of Protocol No.
4, because the refusal-of-entry orders issued against the applicants expressly
stated that the lodging of an appeal would not have suspended their
enforcement.

3. The Grand Chamber Judgment

In February 2016,
the Italian Government request of referral to the Grand Chamber was accepted.
The public hearing took place on the 22nd of June 2016 and the final judgment
was delivered on the 15th of December 2016. The Grand Chamber confirmed the
violations of Article 5 § 1, § 2 and § 4 and confirmed a violation of Article
13 taken together with Article 3.

3.1. Statements Concerning Immigration Detention

Just as the Chamber
had previously determined, the Grand Chamber found unanimously that there had
been violations of Article 5 § 1, § 2 and § 4.

The Government had objected
arguing that the applicants were not deprived of their liberty (and thus the
Court lacked jurisdiction ratione materiae under Article 5), since neither the Lampedusa
reception centre nor the ships moored in Palermo were designed for detention
but rather to provide first aid and assistance (in terms of health and hygiene)
to the migrants for the time necessary to identify them and to proceed with
their return (§§ 58-60). The Court rejected the argument by recalling that, «in
order to determine whether a person has been deprived of liberty, the
starting-point must be his or her concrete situation, and account must be taken
of a whole range of criteria such as the type, duration, effects and manner of
implementation of the measure in question» (§ 64). With regard to the present
case, the Court began by noting that it was not in dispute between the parties,
and it was also confirmed by reports issued by the Parliamentary Assembly of
the Council of Europe and the Italian Senate’s Special Commission for Human
Rights, that the reception centre was under surveillance and that the migrants
were prohibited from leaving the centre (§ 65), and that the same happened with
the ships, which the Government considered “a natural extension of the
reception centre” (§ 66-69). Additionally, the Court noted that the deprivation
of liberty was not insignificant in duration: indeed, summing up the period
spent in the Lampedusa reception centre and the period on board the ships, the
confinement lasted for about twelve days in the case of the first applicant and
about nine days in that of the second and third applicants (§ 70). Finally, the
Court emphasized that neither the classification of the confinement under
domestic law, nor the authorities’ alleged aim to assist the applicants and
ensure their safety, could alter the nature of the constraining measures
imposed. Indeed, «even measures intended for protection or taken in the
interest of the person concerned may be regarded as a deprivation of liberty»
(§ 71).

Having stated that Article
5 applied to the case, the Court concluded that its provisions had been
violated by the Italian Government. With regard to Article 5 § 1, even if the
detention of the applicants under the provision of letter (f) was to control
the liberty of aliens in an immigration context (§ 96), the Court noted that it
was devoid of any legal basis. According to Italian immigration law, immigration
detention is only possible within dedicated centres (the CIE, “Centres for
Identification and Expulsion of Aliens”) and under certain strict circumstances
(for instance, where a refusal-of-entry measure or an expulsion cannot be
implemented immediately, because it is necessary to provide assistance to the
alien, to conduct additional identity checks, or to wait for travel documents
or the availability of a carrier): in the present case, the Government itself
admitted that the applicants had not been held within a CIE because those
conditions were not met, thus conceding that their detention was not authorized
under Italian law (§ 98). Furthermore, the Court stated that the bilateral
agreement for readmission of aliens signed between Italy and Tunisia could not
provide a proper legal basis for detention, above all because its full text had
not been made public and, thus, it was not accessible to the applicants (§
102-103).

With regard to Article
5 § 2, having already found that the applicants’ detention had no clear and
accessible legal basis in Italian law, the Court failed to see «how the
authorities could have informed the applicants of the legal reasons for their
deprivation of liberty or thus have provided them with sufficient information
to enable them to challenge the grounds for the measure before a court» (§ 117);
to be clear, the Court pointed out that «information about the legal status of
a migrant or about the possible removal measures that could be implemented
cannot satisfy the need for information as to the legal basis for the migrant’s
deprivation of liberty» (§ 118).

With regard to Article
5 § 4, the Court recalled that, where detainees are not informed of the reasons
for their deprivation of liberty, their right to appeal against their detention
is deprived of all effective substance (§ 132). Therefore, the Court considered
that its finding under Article 5 § 2 constituted sufficient grounds to conclude
that the Italian legal system did not provide the applicants with an effective
remedy to challenge the lawfulness of their deprivation of liberty (§ 133). It
must also be emphasized that, in the part of the judgment addressing the issue
of Article 5 § 1, the Court already pointed out the unavailability of effective
remedies by arguing that, since the Lampedusa reception centre and the boats were
formally regarded as reception
facilities, the applicants could not have enjoyed the safeguards of habeas
corpus applicable to placement inside the Italian detention centres for
migrants (the CIE), i.e. the validation by an administrative decision subject
to review by a competent court (§ 105).

3.2. Statements Concerning Inhuman and Degrading Treatment

With regard to Article
3, the Grand Chamber confirmed the Chamber judgment as to the conditions on board
the ships and reversed it with regard to the Lampedusa reception centre, thus
declaring that in neither situation did the applicants suffer inhuman or
degrading treatment.

As a general
statement, the Grand Chamber pointed out that, without prejudice to the absolute
character of Article 3 and the related principle that an increasing influx of
migrants cannot absolve a State of its obligations under that provision, yet «it
would certainly be artificial to examine the facts of the case without
considering the general context in which those facts arose» (§ 185). The Court took
into consideration that the situation in 2011 was exceptional (§ 180) and
therefore decided to make its assessment bearing in mind that «the undeniable
difficulties and inconveniences endured by the applicants stemmed to a
significant extent from the situation of extreme difficulty confronting the
Italian authorities at the relevant time» (§ 185).

As to the
confinement in Lampedusa, the Grand Chamber found that, having considered the situation
taken as a whole, as well as the specific circumstances of the applicants’
case, the treatment they complained of did not exceed the level of severity
required for it to fall within Article 3 of the Convention (§§ 190-198). Among
other factors, the Court specifically stressed that, «even though the number of
square metres per person in the centre’s rooms has not been established […] the
freedom of movement enjoyed by the applicants in the CSPA must have alleviated
in part, or even to a significant extent, the constraints caused by the fact
that the centre’s maximum capacity was exceeded» (§ 193). Moreover, the Grand Chamber
emphasized that the applicants had been confined within the reception centre
only for three and four days respectively, and that their cases could be
distinguished from those where the violation was recognized in spite of the
short duration of the confinement (§ 195-196).

As to the
confinement on board the ships moored in Palermo the Grand Chamber pointed out
that the applicants had not presented any objective proof of their allegations (overcrowding
and extreme health and hygiene conditions) and it refused their request to
shift the burden of proof upon the Government: «the burden of proof in this
area may be reversed where allegations of ill-treatment at the hands of the
police or other similar agents of the State are arguable and based on
corroborating factors, such as the existence of injuries of unknown and
unexplained origin» (§ 206). Furthermore, the Grand Chamber attached «decisive
weight» to the fact that the Government had produced before it a judicial
decision rendered by an Italian court contradicting the applicants’ account.
Although the applicants criticized this decision with regard to its evidentiary
basis (they highlighted that the decision was mainly based on the statements of
a member of the Italian Parliament to the press and not reiterated at the
hearing, and that the police had been present when the member of the Parliament
visited the ships), the Court ruled that mere speculation cannot call into
question the assessment of the facts by an independent domestic court (§§
207-208).

3.3. Statements Concerning Collective Expulsions

By a vote of sixteen
to one, the majority of the Grand Chamber reversed the ruling of the Chamber
and declared that no violation of Article 4 of Protocol No. 4 to the Convention
had occurred.

The Grand Chamber
first recalled that, according to its case-law, collective expulsion is to be
understood as «any measure compelling aliens, as a group, to leave a country,
except where such a measure is taken on the basis of a reasonable and objective
examination of the particular case of each individual alien of the group»
(§237). The purpose of this provision is in fact «to prevent States from being
able to remove a certain number of aliens without examining their personal
circumstances and therefore without enabling them to put forward their
arguments against the measure taken by the relevant authority» (§ 238).

With regard to the
present case, the Court noted that, on the one hand, it was undisputed that the
applicants underwent identification on two occasions (i.e. immediately after
their arrival, by the Italian authorities at the reception centre; and before
they boarded the planes for Tunis, by the Tunisian consul); on the other hand,
the parties disagreed with regard to the conditions of the first identification.
The applicants alleged that the Italian authorities had merely recorded their
identities and fingerprints, without taking their personal situations into
account, while the Government instead argued that the identification had consisted
of a genuine individual interview, carried out in the presence of an
interpreter or cultural mediator, following which the authorities filled out an
“information sheet” containing personal data and any circumstances specific to
each migrant. Although the Government was unable to produce the applicants’
“information sheets”, the Court accepted its version, considering it a «plausible
explanation» that those documents had been destroyed in the fire at the
reception centre (§ 246).

Additionally, the Grand
Chamber stated that «Article 4 of Protocol No. 4 does not guarantee the right
to an individual interview in all circumstances; the requirements of this
provision may be satisfied where each alien has a genuine and effective
possibility of submitting arguments against his or her expulsion, and where
those arguments are examined in an appropriate manner by the authorities of the
respondent State» (§ 248). Noting that the applicants remained between nine and
twelve days in Italy, the Court concluded that «during that not insignificant
period of time the applicants had the possibility of drawing the attention of
the national authorities to any circumstance that might affect their status and
entitle them to remain in Italy» (§ 249). Moreover, the Court emphasized that,
before boarding the planes for Tunis, the applicants were received by the
Tunisian Consul, and that this later check «gave them a last chance to raise arguments
against their expulsion» (§ 250).

The Grand Chamber
then addressed other factors which the Chamber had considered relevant to prove
the collective nature of the expulsion, i.e. the fact that the refusal-of-entry
orders had been drafted in comparable terms, only differing as to the personal
data of each migrant, and that a large number of aliens of the same origin had
been expelled at the relevant time. In this regard, the Grand Chamber referred
to case law according to which such scenarios do not automatically lead to a violation
if each person concerned had been given the opportunity to make arguments
against his expulsion to the competent authorities on an individual basis (§§
239 and 251).

The Court then
further noted and called into question the usefulness of an individual
interview in the present case, by observing that «the applicants’
representatives, both in their written observations and at the public hearing,
were unable to indicate the slightest factual or legal ground which, under international
or national law, could have justified their clients’ presence on Italian
territory and preclude their removal» (§ 253).

Finally, the Court
considered it «unnecessary […] to address the question whether, as the
Government argued, the April 2011 agreement between Italy and Tunisia, which
has not been made public, can be regarded as a “readmission” agreement within
the meaning of the Return Directive, and whether this could have implications
under Article 4 of Protocol No. 4» (§ 255).

3.4. Statements Concerning the Availability of Effective Remedies
at National Level

The Grand Chamber
confirmed the Chamber judgment on the violation of Article 13 taken together
with Article 3, but reversed it with regard to a violation of Article 13 taken
together with Article 4 of Protocol No. 4.

As to inhuman and
degrading treatments, the Grand Chamber observed that the Government did not
indicate any remedy by which the applicants could have complained about the
conditions in which they were held both in Lampedusa and on board the ships.
For instance, an appeal to the competent court against the refusal-of-entry
orders would have served only to challenge the lawfulness of their removal (§
270).

As to collective
expulsion, given that a remedy was available under national law, the Court
examined whether the fact that such remedy did not provide an automatic
suspensive effect of the removal order constituted itself a violation of Article
13. While the Chamber answered this question in the affirmative, the Grand Chamber
held the opposite opinion: relying on the case-law De Souza Ribeiro v. France, Čonka
v. Belgium and Hirsi Jamaa and Others v. Italy, the Grand Chamber stated that an
obligation for States to provide for such a remedy (i.e. an appeal with
automatic suspensive effect) only arises «where the person concerned alleges
that the enforcement of the expulsion would expose him or her to a real risk of
ill-treatment in breach of Article 3 of the Convention or of a violation of his
or her right to life under Article 2, on account of the irreversible nature of
the harm that might occur if the risk of torture or ill-treatment materialised»
(§ 276). Given that in the present case the applicants did not claim any of
those risks, the Court concluded that the absence of an automatic suspensive
effect did not entail a violation of Article 13 taken together with Article 4
of Protocol No. 4.

4. Comment

Due to its scope
and abundance of content, the Khlaifia
and Others judgment deserves more thorough deliberation than that which
follows. However, it is worthwhile to highlight herein some of the strengths and
weaknesses, which arise in its interpretation. An Annex summarises the
implications for interpretation of EU law in this field.

With reference to
rulings relating to Article 5, the judgment represents a major step forward in
the process of improving the protection for those people, even today, who are
crossing the European borders despite not having any valid entry documentation.
Suffice it, in this regard, to refer to October 2016, when Amnesty
International released a report
wherein it denounced, among other things, the practices of arbitrary detention
carried out within the new “Hotspots” located at the European borders (see
Amnesty International, Hotspot Italy. How EU’s flagship approach leads to
violations of refugee and migrant rights, p. 26-29). Hereinafter, if the Member
States continue to find the deprivation of liberty as a necessary tool to
contrast illegal migration, they must adopt laws, which clearly and precisely govern
the substantive requirements and procedural guarantees with particular
reference the right to habeas corpus. The European Court, indeed, has
established that no de facto deprivation of liberty exempt from judicial review
is compatible with the aim of Article 5, explicitly stating that this applies
"even in the context of a migration crisis" (§ 106).

With reference to
ECHR Article 3, it is necessary to consider the judgment excerpt wherein the
Court highlights the necessity to take into consideration the emergency
situation that began in 2011 due to the increased migration as a consequence of
the Arab Spring. While, from one side, such a statement is troubling because it
seems like an attack on the mandatory character of Article 3, as well as signalling a step backwards with respect to
the principles established in the M.S.S.
v. Belgium and Greece (§ 223) and Hirsi
Jamaa and Others v. Italy (§§ 122 and 176) cases; on the other side,
its scope must be defined in light of the characteristics of the case, namely,
to a situation in which - at least according to the findings of the Court - the
respondent State had not deliberately violated the prohibition against inhuman
and degrading treatment, but rather found itself faced with the objective
inability to provide better immigration reception conditions. The ratio
decidendi, therefore, complies with the logic of the principle ad impossibilia
nemo tenetur. In a key criticism, however, it is possible to see how the
unlawful deprivation of liberty inflicted by the Italian Government on migrants
had contributed to aggravating the consequences of the humanitarian emergency
in terms of overcrowding and the poor health and hygiene conditions of the
places where the migrants have been confined: the Grand Chamber could perhaps have
taken greater consideration of this circumstance in assessing the existence of
a violation of Article 3.

Turning, finally,
to the aspects related to the prohibition against collective expulsions and the
availability of domestic remedies to challenge them, it is notable how the
judgment is thwarted by a fundamental ambiguity with regard to the scope of
Article 4 of Protocol No. 4 (and its relationship with Article 13).

It is unclear
whether the Court denied the existence of the collective expulsion because it
determined that the applicants had benefited from individual interviews
(according to the version provided by the Government and deemed reliable by the
Court), or because the Court determined that the Government had no obligation
to conduct individual interviews because no risk arose to the life or physical
well being of the applicants according to Articles 2 and 3 of the Convention.
The simplest and most plausible solution is that the Court intended to settle
both issues cumulatively. That being said, the assertion that the obligation to
conduct individual interviews exists only in the presence of risks to life or
physical well being itself is open to criticism. This interpretation, in fact,
makes the provision of Article 4 of Protocol No. 4 virtually useless (interpretatio
abrogans), assuming that the same identical result is reached by directly
applying the principle of non-refoulement arising from Articles 2 and 3
(according to the established case law starting from the famous case of Soering v. United Kingdom).

For this reason,
the restrictive interpretation of Article 4 of Protocol No. 4 proposed by the
Court does not seem reasonable and sound. The same is true with reference to
the guarantees arising from Article 13 in relation to Article 4 of Protocol No.
4: if the automatic suspensive effect was mandatory only in the presence of risk
of harm, then the protection provided by Article 13 in relation with Article 2
and 3 would be enough. The most persuasive interpretation of Article 4 of
Protocol No. 4 seems, instead, to be that which was proposed by the applicants
- and also supported by the third parties that intervened before the Grand
Chamber (see in particular §§ 234-236), as well as by the partially dissenting
opinion of Judge Serghides – according to which, Article 4 of Protocol No. 4
provides procedural guarantees that are independent from the concrete situation
of the individual applicant because it is designed to ascertain such situation.
Therefore, the only effective domestic remedy pursuant to Article 13 to prevent
the violation of such procedural guarantee is necessarily one that envisages an
automatic suspensive effect of the expulsion. A third party (see § 265) and the
aforementioned dissenting opinion expressed their opinions to this effect (see
in particular §§ 73-74 of the opinion, where the judge refers to the De Souza
Ribeiro, Čonka and Hirsi Jamaa and Others case law in order to highlight how,
in hindsight, they offered arguments supporting the opposite conclusions than
those of the majority).

Therefore, valid
arguments exist to support that the violations of Article 4 of Protocol No. 4
and Article 13 in relation to it, are integrated in each case in which the
applicants are not given the opportunity to "put forward arguments"
in support of their condition, nor are they granted a remedy having suspensive
effect, regardless of any prediction concerning the contents of the statements
they might have made to the authorities, as well as, any evaluation regarding
the "safe country" nature of the destination country (without
prejudice to the fact that, if risks to life and physical well being of the
foreigner actually arise, his expulsion could lead to different and further
violations of Articles 2 and 3).

This
interpretation, in addition to being consistent with the text and the general
scheme of the Convention, is the only one able to protect migrants without
valid documents from potential abuses and arbitrary decisions by the border
authorities: in this context, therefore, it seems that the Strasbourg Court has
missed an important opportunity to impose a substantial level of protection of
fundamental rights with regard to the current immigration crisis that Europe is
facing.

Barnard &
Peers: chapter 26

JHA4: chapter I:7

Photo: detention on Lampedusa

Photo credit: UNHCR

Annex: the EU law implications

Professor Steve
Peers

Neither the main
judgment in this case nor the concurring and dissenting judgments discuss EU
law aspects in any detail. Nevertheless, in light of the ECJ’s tendency to take
account of Strasbourg judgments, the ruling will have consequences for the
interpretation of EU law, particularly in the context of the perceived
‘migration crisis’ which the ECtHR refers to.

First of all, the
ruling that being kept in asylum reception centres and ships may amount to
detention is significant for interpreting the EU’s reception
conditions Directive (as regards detention of asylum-seekers) and the Returns
Directive (as regards the detention of irregular migrants, given that the
ECJ has already ruled
that the ECtHR’s interpretation of ‘detention’ is relevant for applying the EU
law on the European Arrest Warrant.

Secondly, the
interpretation of ‘lawfulness’ of detention under the ECHR is also relevant,
given that the EU legislation requires such detention to be lawful as well.

Thirdly, the
insistence that judicial control of detention is essential 'even in the context
of a migration crisis' makes clear that there is no ‘crisis’ excuse to avoid judicial
review of migration or asylum detention (for the most recent ECJ case law on
this issue, see discussion here).
The ruling on the breach of Article 5(4) ECHR regarding judicial review follows
from the breach of Article 5(2), and is relevant to the interpretation of Article
9(3) of the reception conditions Directive and Article 15(2) of the Returns Directive.

Fourthly, as for the
breach of Article 5(2) ECHR because the migrants were not told why they were
detained (it being irrelevant that they know they were entering illegally) confirms
the wording of Article 9(4) of the reception conditions Directive, but adds to
the wording of Article 15(2) of the Returns Directive, which contains no express
requirement to inform.

Fifth, the ruling
that there was no breach of Article 3 as regards conditions in either reception
centres or ships, giving states some latitude in the context of the migration
crisis, is relevant to the interpretation of the rules in the reception
conditions Directive and the Returns Directive on the conditions of detention.

Sixth, the Returns
Directive and the asylum
procedures Directive do not ban collective expulsion explicitly, but it is
implicit from the requirement of individual decision-making and the obligation
to comply with the EU Charter of Rights, which bans collective expulsion
expressly. The ECtHR judgment is therefore relevant in that it confirms that
the ban on collective expulsion also applies if States define it as a refusal
of entry, but also as regards the ruling that the ECHR is not breached in the
absence of individual interviews as long as they can make a case against
expulsion. This falls well below the standard in the asylum procedures
Directive as regards the asylum process, and also probably below the ‘right to
be heard’ guaranteed by the ECJ
case law regarding irregular migrants and the Returns Directive.

Seventh, the breach
of Article 13 ECHR as regards the lack of an effective remedy regarding detention
conditions could be relevant to EU law. Although a remedy on this issue is not expressly
mentioned in Article 10 of the reception conditions Directive or Article 16 of
the Returns Directive, it follows from Article 47 of the Charter (the ‘effective
remedies’ clause) that such a remedy must be available.

Finally, the
compliance with Article 13 ECHR as regards the lack of a right to of a right of
suspensive effect of an appeal as there was no allegation of a risk of
breaching Articles 2 or 3 ECHR justifies the lack of suspensive effect of a
challenge to an expulsion under the Returns Directive, except in special cases
as defined
by the ECJ. Conversely, it confirms that there must be either suspensive effect
of an appeal or the possibility to request such suspensive effect in asylum
cases, as set out in the procedures Directive.

2 comments:

Those were ILLEGAL MIGRANTS with no right to stay in Italy. The Centre in Lampedusa was set on fire by illegal migrants. They have certainly right, but Italy has right and duty to protect its boundaries and its citizens. Regards. Jane

I can't see what your point is - with or without capital letters. You accept that they have rights - which is what the Court ruled as regards their detention and the conditions of their treatment. Since they had no claim to stay on the territory that is why the Court ruled that it was not a collective expulsion to expel them. If they did have a fear of persecution or serious harm then their irregular entry would be irrelevant as they would have a claim for refugee status and could not be penalised for entering irregularly - as Article 31 of the UN Refugee Convention makes explicitly clear.